Terms and Conditions. Contracting Authority

Transcription

1 Terms and Conditions Contracting Authority The Corporate Officer of the House of Lords Page 1 of 44

2 Conditions of Contract Basic Contract Information Section Definition & Interpretations Entire Agreement Duration of the Contract Governing Law Contractor s Status Severability Contract Price and Payment Variations Arbitration... 7 Contract Operation Section Contractor s Personnel Provision of Services and Equipment Use of Authority s Premises Security Assignment, Novation & Sub-Contracting Soliciting Work and/or Personnel / Recommending Additional Work Liability, Indemnity & Insurance Section Liability for Personal Injury & Loss of Property Indemnity for Claims by Third Parties Insurance Handling of Claims Remedies Section The Authority s Remedies in the Event of Unsatisfactory Performance The Contractor s Remedies for Non Payment Remedies Cumulative Waiver Contract Expiry or Termination Section Break Termination on Change of Control or Bankruptcy Recovery Upon Termination & Transition of Services Disclosure & Confidentiality Section Use & Disclosure of Documents, Information etc Freedom of Information Data Protection Act Statutory Requirements Section Industrial Actions & the Transfer of Undertakings (Protection of Employment) Discrimination & Human Rights Environmental Requirements Health & Safety Intellectual Property Rights Patents Bribery and Prevention of Corruption Enquiries Relating To Tax Arrangements Appendix 1 - T&C s Change Control Following the Award of Contract Appendix 2 - The Supply of Goods Appendix 3 - Parliamentary Offsite Consolidation Centre (OSCC) Appendix 4 - Code of Conduct and Behaviour Page 2 of 44

3 Basic Contract Information Section 1. Definition & Interpretations In these conditions: 1.1. "The Authority" means the Corporate Officer of the House of Lords "The Authority s Premises" means lands and buildings which make up the Parliamentary Estate. For the purpose of the delivery of goods, it also includes the Parliamentary Offsite Consolidation Centre The Authority s Parliamentary Information and Records Management Policy refers to the Information and Records Management Policy 2014 (available at The Authority s Authorised Records Disposal Practice refers to the Authority s retention and disposal schedule (available at "The Commencement Date" means the date on which the Contract shall take effect, as notified by the Authority to the Contractor in a letter awarding the Contract "Conditions" means the entire contents of the headed paragraphs in these terms and conditions "The Contract" means the agreement concluded between the Authority and the Contractor including these Conditions, the invitation to tender documents, the Contractors tender documents, any subsequent clarifications and any other documents which are relevant to the Contract and listed in the contract acceptance letter. In the case of any discrepancy among these documents these Conditions shall prevail "The Contractor" means the firm who undertakes to provide the Services/Goods for the Authority as stated in the Contract. Any reference to the Contractor, shall also include its Sub-contractors "The Contract Period" means the period of duration of the Contract in accordance with Condition "The Contract Price" means the price stated in the Contract exclusive of Value Added Tax, payable to the Contractor by the Authority under the Contract for the full and proper performance by the Contractor of his part of the Contract as determined under the provisions of the Contract "Contractor s Personnel" means any person, commissioned and paid by the Contractor or its Sub-contractors to either perform any part of this Contract or to provide Services/Goods to the Contractor to facilitate performance of the Contract. Page 3 of 44

4 1.12. "Default" means any breach of the obligations under this Contract (including but not limited to material breach or breach of a fundamental term) or any default, act, omission, negligence or statement of the party, its Personnel, agents or Sub-Contractors in connection with or in relation to the subject matter of the Contract and in respect of which the party is liable to the other "Personnel of the Authority" means any person employed directly or indirectly by the Authority when any relevant Personal Injury or Loss of Property occurred, even if he has ceased to be such before any payment in respect of the Personal Injury or Loss of Property is made, and, where such person has ceased to be a Personnel by reason of death, includes their personal representative Personnel is defined as a person employed directly or acting on behalf of either the Authority, the Contractor or the Sub-contractor "Government Provision" means any statutory provision, warrant, order, scheme, regulations or conditions of service applicable to Personnel of the Authority providing for continuance of pay or the payment of sick pay, or any allowance to or for the benefit of Personnel of the Authority, or their families or dependants, during or in respect of sickness, injury or disablement suffered by such Personnel Information refers to data, documents, records and other recorded information derived or obtained in the course of the Contract, or received from the Authority prior to the Commencement Date "Loss" includes destruction "Loss of Property" includes damage to property, loss of profits and loss of use "Month" means calendar month unless otherwise defined "Personal Injury" includes sickness and death "Representative of the Authority" in any provision of the Contract means the person duly authorised by the Authority to act for the purposes of the provision "The Services/Goods" means all tasks/supplies which the Contractor is required to carry out/deliver under the Contract "Sub-Contractor" means any individual (other than Personnel of the Contractor), firm or company who enters into an agreement with the Contractor or with a Sub-Contractor to perform work or provide professional services and/or supply goods in connection with the Contract and includes any other individual or individuals taken as a partner or director by such individual, firm or company during the currency of the Contract and the surviving member or members of any such firm or company The masculine includes the feminine The singular includes the plural and vice versa Reference to any enactment, order, regulation or other similar instrument, shall be construed as a reference to the enactment, order, regulation or Page 4 of 44

5 instrument as amended by any subsequent enactment, order, regulation or instrument Reference to a Condition is a reference to the whole of that Condition unless stated otherwise Reference to a Clause is a reference to a paragraph within a Condition unless stated otherwise The headings of these Conditions shall not affect the interpretation thereof Any notice or other communication which is to be given by either party to the other shall be given by letter, (sent by hand or post or by registered post or by the recorded delivery service) or transmitted by electronic mail or facsimile transmission. Such notices or communications shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours All communication between the parties, letters, documentation, specifications, reports etc. shall be in the English language Statement of Requirements is a contractual document which includes a description, specification, requirements and details of the goods or services to be provided by the Contractor for the duration of the contract. 2. Entire Agreement 2.1. The Contract constitutes the entire agreement between the parties relating to the subject matter of the contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this Condition shall not exclude liability in respect of any fraudulent misrepresentation. 3. Duration of the Contract 3.1. The Services/Goods shall be provided for a period as stated in the Statement of Requirements subject to the Authority's rights of earlier termination under the Conditions. Extensions to the Contract will be subject to satisfactory performance and require the written consent of the Authority. The Authority shall give reasonable notice of its decision concerning contract extensions. 4. Governing Law 4.1. This Contract shall be governed by and interpreted in accordance with the Law of England and Wales and shall be subject to the exclusive jurisdiction of the Courts of England and Wales The Contractor will keep abreast of all legal issues and changes to legislation that may affect the performance of the Contract and will take the necessary steps to ensure that all laws are adhered to and any new laws coming into force during the Contract will be recognised and their Personnel will have the appropriate training to comply. Page 5 of 44

6 5. Contractor s Status 5.1. Nothing in the Contract shall be construed as creating a partnership, a contract of employment or a relationship of principal and agent between the Authority and the Contractor. 6. Severability 6.1. If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Contract, the parties shall immediately commence negotiations in good faith to remedy the invalidity. 7. Contract Price and Payment 7.1. Subject to Clause 7.2 below Contract Price shall remain fixed for the duration of the contract and subject to annual review thereafter In the event that the Contract Price is increased or decreased as a result of any new legislation or regulation being made after the commencement of the contract, the amount of any such increase or decrease shall be treated as a variation to the Contract and will be assessed on an individual basis. Such variations will not be allowed where new legislation or regulations are enacted after the commencement of the contract, but were made public prior to the commencement of the contract. Any such variations to price which can be foreseen by the Contractor prior to commencement of the Contract will be deemed to have been included in the Contract Price The Contract Price shall be strictly net of Value Added Tax (VAT). VAT, where applicable, shall be shown separately on all invoices as a strictly net extra charge. The Authority shall pay to the Contractor, in addition to the Contract Price, a sum equal to the Value Added Tax chargeable on the value of the Services/Goods provided in accordance with the Contract Unless otherwise stated in the Contract, the Contractor shall submit invoices to the Authority s budget holder monthly in arrears Payment of undisputed invoices shall be made within 30 days of receipt and agreement of invoices. The Representative of the Authority will have the final say as to whether an invoice is valid. Payments will normally be made by BACS and the date of payment by electronic transmission shall be the date the transmission is effected. Exceptionally payments may be made by cheque when payment shall be deemed to have be made on the date of posting 7.6. The invoice must: a) be a true and accurate reflection of the work undertaken and associated Contract Price; b) be referred with all appropriate Contract references and titles; Page 6 of 44

7 c) include a detailed breakdown of Services/Goods provided, taking account of any due deductions, with any supporting invoices or other necessary documentation to substantiate the claim as required by the Authority Whenever under the Contract any sum of money shall be recoverable from or payable by the Contractor, that sum may be deducted from any sum then due, or which at any time thereafter may become due to the Contractor under the Contract or under any other contract with either the Authority 8. Variations 8.1. The provisions of the Contract may only be amended or added to by formal amendments issued in writing in accordance with the change control procedure detailed in Appendix 1 to these Conditions. The Contractor shall not unreasonably withhold their agreement to such amendments requested by the Authority No oral agreement or written amendment, other than in accordance with the change control procedure detailed in Appendix 1, shall be binding on either of the parties to the Contract The provisions of this Condition also apply to itself Should the Contractor become aware that the scope of the Contract has been changed, or a problem has been identified which needs a variation to take account of a change to the cost and/or duration of the Contract they must notify the Authority immediately otherwise any additional work/costs claimed at a later date will not be met Without prejudice to any other clause in this Contract, the Authority may terminate the Contract, where substantial modifications have been identified and these modifications are outside the scope of those allowable by Regulation 72 of the Public Contracts Regulations 2015; 8.6. Where the Contract may be modified in accordance with Regulation 72(1)(a) Public Contracts Regulations 2015, the relevant review clause may be found in the initial procurement documents. 9. Arbitration 9.1. Any dispute arising out of or in connection with the Contract, which cannot be resolved by negotiation between the parties shall be referred to the arbitration of a single arbitrator appointed by agreement between the parties or in default of agreement nominated on the application of either party to the Centre for Dispute Resolution ( CEDR ). Contract Operation Section 10. Contractor s Personnel The Contractor undertakes to perform the Contract efficiently with all due skill, care and diligence including but not limited to good industry practice. Page 7 of 44

8 10.2. All Personnel engaged in the Contractor s performance of the Contract must have appropriate qualifications and competence and in all respects be acceptable to the Authority. Where so required, full particulars of all Personnel to be so engaged shall be forwarded in advance to the Authority for confirmation of acceptability The key Personnel offered by the Contractor and accepted by the Authority to work on the Contract are as stated in the Contract If instructed by the Authority the Contractor shall provide the Authority with full details of all persons who are or may be at any time concerned with the delivery of the Contract or any part of them, including any supporting evidence as the Authority may reasonably require The Contractor shall not make changes to the Personnel assigned to and accepted for the work under the Contract except when such changes are unavoidable or of a temporary nature caused by sickness etc. The Contractor shall give at least one Month's notice to the Authority of proposals to change key Personnel and Clauses 10.1 and 10.2 shall apply to the replacement Personnel The Contractor shall comply with any requirements to prevent unauthorised persons being admitted by the Contractor to the Authority's Premises. If the Authority gives the Contractor notice that any person is not to be admitted to or is to be removed from its Premises or is not to become involved in (or is to be removed from) the Contract, the Contractor shall take all reasonable steps to comply with such notice and shall return any security pass that has been issued The Authority will have the final say as to whether any person is to be admitted or removed from involvement in the Contract or as to the designation or approval of key Personnel and as to whether the Contractor has furnished the information or taken the steps required of him by this Condition shall be final and conclusive The Contractor shall bear the cost of any notice, instruction or decision of the Authority under this Condition The Contractor shall ensure that it maintains a large enough pool of appropriate security cleared Personnel to carry out its obligations under this Contract The Contractor will bear all costs relating to the employment of Personnel in connection with the Contract The Authority is accredited by Citizens UK (CUK) as London Living Wage Employers. As a condition to this Contract, the Contractor and Subcontractors providing services to the Authority shall pay to all Personnel assigned to this Contract, as a minimum: a) The London Living Wage - (i) where they have Dedicated Personnel working on the Authority s premises; Dedicated Personnel means anyone (other than an apprentice or intern) who provides a service to or on behalf of the Authority involving 2 or more Page 8 of 44

9 hours of work in any given day in a week, for 8 or more consecutive weeks in a year The Contractor shall pay to all Dedicated Personnel any increase in respect of the living wage rates for the duration of the contract without incurring additional cost to the Authority. The Contractor agrees to include the living wage rate increases in the total contract price The Contractor is required to provide evidence, information and/or records on a regular basis to demonstrate that the working conditions of Personnel are such as to ensure the welfare of the workforce and the maintenance of stable and skilled teams. This will include the salaries paid to each member of Personnel (which should be at least the relevant Living Wage rate to this Contract) and evidence that this is sufficient to maintain such a workforce, training and other workforce matters. 11. Provision of Services and Equipment The Contractor shall provide the Services during the Contract Period in accordance with the Statement of Requirements and the provisions of this Contract in consideration for the payment of the contact price. The Authority may inspect and examine the manner in which the Contractor provides the Services during normal business hours on reasonable notice Subject to the Authority providing approval in accordance with clause 11.8, time in relation to the provision of the Services shall be of the essence, including in relation to commencing the provision of the Services within the time agreed or on a specified date The Contractor shall ensure that the Services are fully compatible with all equipment used by the Authority from time to time including any Authority's equipment specified in the Statement of Requirements The Contractor agrees that the Authority relies on the skill and judgment of the Contractor in the provision of the Services and the performance of its obligations under the Contract The Contractor shall at all times comply with the Technical Standards and the Quality Standards, and where applicable shall maintain accreditation with the relevant Quality Standards' authorisation body. To the extent that the standard to which the Services must be provided has not been specified in the Contract, the Contractor shall agree the relevant standard for the provision of the Services with the Authority prior to the provision of the Services commencing and in any event, the Contractor shall perform its obligations under the Contract in accordance with the Law and Good Industry Practice The Contractor shall ensure that all Personnel supplying the Services shall do so with all due skill, care and diligence and shall possess such Page 9 of 44

10 qualifications, skills and experience as are necessary for the proper supply of the Services Unless otherwise stated in the Statement of Requirements, the Contractor shall provide all the Equipment necessary for the provision of the Services The Contractor shall not deliver any Equipment nor begin any work on the Premises without obtaining approval from the Authority All Equipment brought onto the Premises shall be at the Contractor's own risk and the Authority shall have no liability for any loss of or damage to any Equipment unless and to the extent that the Contractor is able to demonstrate that such loss or damage was caused by or contributed to by the Authority's Default. The Contractor shall be wholly responsible for the haulage or carriage of the Equipment to the Premises and the removal thereof when it is no longer required by the Authority and in each case at the Contractor s sole cost. Unless otherwise stated in this Contract, Equipment brought onto the Premises will remain the property of the Contractor The Contractor shall maintain all items of Equipment within the Premises in a safe, serviceable and clean condition The Contractor shall, at the Authority's written request, at its own expense and as soon as reasonably practicable: a) remove from the Premises any Equipment which in the reasonable opinion of the Authority is either hazardous, noxious or not in accordance with the Contract; and b) replace such item with a suitable substitute item of Equipment Upon termination or expiry of the Contract, the Contractor shall remove the Equipment together with any other materials used by the Contractor to provide the Services and shall leave the Premises in a clean, safe and tidy condition. Any damage to the Premises or any objects contained thereon which was caused by Personnel working on behalf of the Contractor or its Sub-contractors shall be repaired by the Authority at the expense of the Contractor Any equipment provided by the Authority for the purpose of the Contract shall remain the property of the Authority and shall only be used for the purpose of carrying out the Contract; to be returned promptly to the Authority on expiry or termination of the Contract. The Contractor will reimburse the Authority for any loss or damage to the equipment (other than deterioration resulting from normal and proper use) caused by the actions of Contractor s Personnel. Equipment supplied by the Authority shall be deemed to be in good condition when received by or on behalf of the Contractor, unless the Authority is notified otherwise in writing within seven days of such receipt. Page 10 of 44

11 12. Use of Authority s Premises Any land or premises (including temporary accommodation) made available to the Contractor by the Authority in connection with the Contract shall be made available to the Contractor free of charge (unless stated elsewhere in the Contract) and shall be used by the Contractor solely for the purpose of performing the Contract The Contractor undertakes to exercise all reasonable precautions to protect the Authority s Premises, its assets and all those on the site from any harm that may arise from their being on site Whilst on the Authority s Premises, the Contractor shall ensure that the Contractor and the Contractor s Personnel shall be aware of and comply with the following rules regarding the use of lifts and escalators when the Division bell is ringing: a) Lifts are solely reserved for the use of Members; b) Members have priority use of the escalators. 13. Security Whilst on the Authority s Premises, the Contractor s Personnel shall comply with all security measures implemented by the Authority and their security Contractors The Authority shall have the right to carry out any search of the Contractor s Personnel or of vehicles used by the Contractor at the Authority s Premises The Contractor shall co-operate with any investigation relating to security which is carried out by the Authority or by any person who is responsible to the Authority for security matters and when required by the Representative of the Authority The Contractor shall use his best endeavours to make any Contractor s Personnel identified by the Representative of the Authority available to be interviewed by the Representative of the Authority, or by a person who is responsible to the Authority for security matters, for the purposes of the investigation. Contractor s Personnel shall have the right to be accompanied by a Contractor s representative and to be advised or represented by any other person whose attendance at the interview is acceptable both to the Representative of the Authority and the Contractor The Contractor shall, subject to any legal restriction on their disclosure, provide all documents, records or other material of any kind which may reasonably be required by the Authority or by a person who is responsible to the Authority for security matters, for the purposes of the investigation, so long as the provision of that material does not prevent the Contractor from performing the Contract. The Authority shall have the right to retain any such material for use in connection with the investigation and, so far as possible, shall provide the Contractor with a copy of any material retained All Contractor s Personnel who have access to the Parliamentary Estate or the Authority s IT network in order to perform this contract are required to Page 11 of 44

12 have received prior security clearance. This must be issued before access is granted. To obtain security clearance the Contractor s Personnel will need to have resided in the UK for a minimum of 3 years out of the last 5 years. The Contractor is required to submit a fully completed security questionnaire for each member of his workforce (including all Subcontractors) providing all such personal details as shall be required. Please note that any form which is submitted in an incomplete or inaccurate manner will be returned to the Contractor unprocessed In the majority of cases clearance will be given or refused within 6 (six) weeks of the date that the correctly completed forms are received by the Authority. In the remainder of cases, after six weeks, the Contractor will be informed that a further undetermined period may be required. The Contractor is therefore strongly advised to submit completed security questionnaires at the earliest opportunity The Authority further requires that all Contractors and Sub-contractors undertake HMG Baseline Personnel Security Standard (BPSS) preemployment checks on all Personnel who will have access to the Parliamentary Estate or the Authority s IT network as part of the process of submitting the security questionnaires and to make their records available for auditing by the Authority upon request. The Personnel's BPSS checks must be completed before their fully completed security questionnaire referred to in 13.6 is submitted. These checks shall comprise four main elements: a) Identity - This includes checking the individual s full name and signature, date of birth, National Insurance Number (NINO) and full permanent address. The Contractor will also need to compare the likeness of the person to the photographic documentation presented as proof of identity and status. b) Nationality and Immigration status - This includes carrying out the required checks to establish the Personnel s right to work in the UK, as stipulated in the Prevention of Illegal Working, Immigration, Asylum and Nationality Act c) Employment history (past 3 years) - This requires that the Contractor checks Personnel s employment or academic history for the past 3 years (as a minimum). d) Criminal record (unspent convictions only) The Audit and Compliance Team will carry out this check on behalf of the Contractor Further advice and guidance is available from the following: Pass Office Telephone: , 5922, 2970 Fax: passoffice@parliament.uk Cabinet Office Page 12 of 44

13 Home Office UK Border Agency Once Contractor s Personnel have been issued with passes they are required to comply with all rules related to the use of passes as issued from time to time by the Authority. Failure to do so will result in the withdrawal of the pass and removal of access to the Parliamentary Estate, the Authority s IT network or both Where an existing pass holder is refused security clearance or subsequently has their security clearance removed, the Authority will withdraw the pass and remove access of that individual to the Parliamentary Estate, the Authority s IT network or both The Contractor is to note that all Contractor s Personnel who need to either collect a new pass or renew their pass must attend an induction session beforehand: a) Inductions for Contractors will take place on Thursdays 3.00p.m. 4.00p.m. and Fridays 10.30a.m a.m. This includes time for the induction film, distribution of the induction booklet and aide memoire and collection of passes. No deviation from these times will be permitted. b) Inductions will now include a simple test to demonstrate that information provided has been understood They must then hand over the signed and dated declaration card before being given their pass The Contractor is deemed to have allowed and included in the tender for all costs associated with attending the induction and obtaining passes, including any changes to the timings or content of the induction No claim will be considered for loss, delay or inconvenience due to the Contractor s inability to provide sufficient Personnel with clearance to enter the site The Contractor shall note that the issuing of a security pass cannot be guaranteed. Should a security pass be refused the decision shall be final and conclusive and no explanation will be given. It is the Contractor's responsibility to provide, at his own expense, adequate security cleared labour and no claim will be considered for loss, delay or inconvenience as a result of rejection of labour on security grounds Where access is no longer required, the Pass Office must be informed within five working days and any pass returned. Failure by the Contractor to do so may be treated as a breach of contract. Page 13 of 44

14 14. Assignment, Novation & Sub-Contracting The Contractor shall not assign or sub-contract any portion of the Contract nor Novate the Contract without the prior written consent of the Authority, with the sole exception that the Contractor may assign the debt arising under the Contract to a factor or invoice discounter without prior Approval. Sub-contracting any part of the Contract shall not relieve the Contractor of any obligation or duty attributable to the Contractor under the Contract or these Conditions Where the Authority has consented to the placing of sub-contracts the Contractor shall, if requested by the Authority, provide the Authority with copies of the sub-contract The Authority is entitled to assign any or all of its rights under the Contract to any contracting authority as defined in Regulation 2(1) of the Public Contracts Regulations 2015, provided that such assignment shall not materially increase the burden of the Contractor s obligations under the Contract The Contractor shall be responsible for the acts and omissions of his Sub- Contractors as though they were his own The Contractor shall not use the services of self-employed individuals without prior approval Where the Contractor enters into a sub-contract for the purpose of performing the Contract, or part thereof, the said sub-contract shall include a term which requires payment to be made to the Sub-Contractor within a specified period not exceeding thirty (30) days from receipt of a valid invoice, as defined by the sub-contract requirement The parties agree that the Authority s rights and obligations under the Contract may in the future be transferred to a third party. If required by the Authority, the Contractor shall execute any document reasonably required to novate the Contract. Any costs and expenses incurred by the Contractor and arising from any such novation shall be borne by the Contractor. 15. Soliciting Work and/or Personnel / Recommending Additional Work To the extent the Contractor is performing an advisory service to the Authority, under the Contract, it shall be forbidden to solicit work for any part of the Contractor s organisation, including partners, associate or parent companies, or to make recommendations or tender advice that directly leads to additional work with the Authority for the Contractor either as a variation or extension to this Contract or by the award of a separate noncompetitive contract The Authority and the Contractor agree not to offer employment to or solicit the other s personnel who within 6 months of such action has been Page 14 of 44

15 involved directly in the Services or otherwise connected to this Contract (except where an individual responds directly to a general recruitment campaign) nor use the services of any such personnel, either independently or via a third party, for a period of 6 months from the date that the individual concerned ceases to be permanently involved with the Services. Liability, Indemnity & Insurance Section 16. Liability for Personal Injury & Loss of Property The Contractor shall compensate the Authority for any Loss of Property suffered by the Authority and any Personal Injury suffered by an Employee of the Authority arising in any way from the performance or purported performance of the Contract by the Contractor If the Contractor shows that any such Personal Injury or Loss of Property was neither caused nor contributed to by his neglect or wrongful act or by that of his employees, agents or Sub-Contractors or that it arose from circumstances outside their control, there shall be under no liability under this Condition If the Contractor shows that the neglect or wrongful act of any person (not being his employee, agent or Sub-Contractor) was in part responsible for the Personal Injury or Loss of Property, the Contractor's liability under this Condition shall not extend to the share in the responsibility attributed to the neglect or wrongful act of that person Subject to the following provisions of this Condition, the Authority shall compensate the Contractor for any Loss of Property suffered by the Contractor and any Personal Injury suffered by an employee of the Contractor arising as a result of the performance or purported performance of the Contract by the Contractor If the Authority shows that any such Personal Injury or Loss of Property was neither caused nor contributed to by its neglect or wrongful act or by that of any Employee of the Authority or that it arose from circumstances outside the Authority s control, the Authority shall be under no liability under this Condition If the Authority shows that the neglect or wrongful act of any person (not being its employee) was in part responsible for the Personal Injury or Loss of Property, the Authority s liability under this Condition shall not extend to the share in the responsibility attributed to the neglect or wrongful act of that person. 17. Indemnity for Claims by Third Parties Subject to the following provisions of this Condition, the Contractor shall indemnify and keep indemnified the Authority against: a) all proceedings, actions or claims brought against the Authority or any Personnel of the Authority; and b) all payments, costs and expenses incurred by the Authority or any Personnel of the Authority in respect of any Loss of Property, Personal Page 15 of 44

16 Injury or other Loss (including financial loss arising from any advice given or omitted to be given by the Contractor) suffered by a person other than the Contractor or a Personnel of the Contractor (but including that suffered by an agent of the Contractor or by a Sub-Contractor) arising in any way from the performance or purported performance of the Contract The indemnity shall not apply to the extent that the Contractor is able to show that such Personal Injury or Loss or damage was not caused or contributed to by its negligence or wrongful act or omission or that of its Personnel or agents or Sub-Contractors or by any circumstances within its or their control Without prejudice to the generality of Clause 17.1, the Contractor s obligation under that Clause includes indemnifying the Authority for any payment made under any Government Provision in connection with any Personal Injury suffered by a Personnel of the Authority. 18. Insurance The Contractor shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Contractor, arising out of the Contractor s performance of the Contract and in respect of the liability outlined in Conditions 16 and 17. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Contractor The terms of any insurance or the amount of cover shall not relieve the Contractor of any liabilities under the Contract. The Contractor shall maintain a minimum insurance cover of an adequate level of cover in respect of all risks which may be incurred The Contractor shall ensure that his Sub-Contractors and agents effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Sub-Contractor, arising out of his involvement in the performance of the Contract The Contractor shall produce to the Representative of the Authority, on request, copies of all insurance policies referred to in this Condition or other evidence confirming the existence and extent of the cover given by those policies, together with receipts or other evidence of payment of the latest premiums due under those policies The Contractor shall notify the Authority promptly of any change of the insurance covers mentioned in this Condition and evidence of the new cover in order to satisfy the Authority that it meets the requirements of this Condition. Page 16 of 44

17 19. Handling of Claims The Authority shall notify the Contractor as soon as reasonably practicable of any claim or proceedings for which the Contractor may be liable under Condition 16 or Where the Contractor is or may be liable to indemnify the Authority in respect of any claim or proceeding he or, if he so wishes, his insurers, shall, subject to the rest of this Condition be responsible for dealing with or settling that claim or proceeding The Authority shall in any event deal with any such claim which involves a Government Provision or which is made by or against a Personnel of the Authority, and Clause 19.2 shall not apply to any such claim Where any claim or proceeding in respect of which Conditions 16 or 17 applies is settled otherwise than by the Contractor or his insurers, the Contractor shall not be required to pay by way of indemnity any sum greater than that which would be reasonably payable in settlement having regard to the circumstances of the case and in particular to the damages which might be recoverable at law If, when the Contractor or his insurers are dealing with any claim or proceeding to which Conditions 16 or 17 applies, any matter or issue arises which involves, or may involve, any privilege or special right of the Authority (including a matter relating to the discovery or production of documents) the Contractor or his insurers shall consult the Authority before taking any further action on the matter and shall act in relation thereto as may be required by the Authority; and if either the Contractor or his insurers fail to comply with this Condition, Condition 19.2 shall cease to apply. Remedies Section 20. The Authority s Remedies in the Event of Unsatisfactory Performance If the Authority is of the opinion that there has been a Default by the Contractor or the Contractor s Personnel, then, if the Default or other failure is capable of remedy, the Authority shall send to the Contractor a written notice specifying the Default and stating the time within which the Contractor must remedy the Default and put right any damage resulting from it The Authority may take any of the actions set out in Clause in the event that: a) the Contractor fails to comply with a notice sent under Clause 20.1; b) the Authority is of the opinion that there has been a Default of the Contract by the Contractor which is not capable of remedy; or c) the Authority is of the opinion that there has been a material breach of the Contract by the Contractor The actions set out in this Clause are: a) The Authority may deduct from any payment due to be made to the Contractor an amount which the Authority reasonably considers to Page 17 of 44

18 reflect the sums which have been paid to the Contractor, or the sums which would otherwise be payable to the Contractor, in respect of such of the Services/Goods as the Contractor has failed to provide. b) The Authority may, without terminating the Contract, itself provide or procure the provision of part of the Services/Goods until such time as the Contractor demonstrates to the reasonable satisfaction of the Authority that the Contractor will once more be able to provide such part of the Services/Goods in accordance with the Contract, and in the meantime the Authority shall be entitled to exclude the Contractor, its Personnel, agents and Sub-Contractors from the Authority s Premises. c) The Authority may, without terminating the whole of the Contract, terminate the Contract in respect of part of the Services/Goods only (whereupon a corresponding reduction in the Contract Price shall be made) and thereafter itself provide or procure a third party to provide such part of the Services/Goods. d) The Authority may terminate the whole of the Contract Where, pursuant to Clause 20.3 the Authority itself provides or procures the provision of part of the Services/Goods, it may charge to the Contractor any cost reasonably incurred by it and any reasonable administration costs in respect of the provision of any part of the Services/Goods to the extent that such costs exceed the payment which would otherwise have been payable to the Contractor for such part of the Services/Goods Where, pursuant to Clause 20.3, the Authority terminates the Contract, or terminates any part of the Contract, and then makes other arrangements for the provision of Services/Goods, the Authority shall be entitled to recover from the Contractor the reasonable costs of making those other arrangements and any additional expenditure incurred by the Authority throughout the remainder of the Contract Period. Where the whole Contract is terminated, no further payments shall be payable by the Authority to the Contractor until the Authority has established the final cost of making those other arrangements In the event that through any Default of the Contractor, data transmitted or processed in connection with the Contract is either lost or sufficiently degraded as to be unusable in the reasonable opinion of the Authority, the Contractor shall be liable for the necessary repairs and the costs of providing a replacement that is acceptable to the Authority The remedies of the Authority under this Condition may be exercised successively in respect of any one or more failures by the Contractor and shall survive the expiry or termination of the Contract. 21. The Contractor s Remedies for Non Payment If the Authority fails to pay the whole or part of the Contract Price when it falls due, the Contractor shall give the Authority 90 days notice specifying the breach and requiring its remedy. In the event that the Authority fails to comply with such notice, the Contractor may terminate the Contract. The Contractor s right of termination under this Clause shall not apply to non Page 18 of 44

19 payment of the charges where such non-payment is due to the Authority exercising its rights under Clause Remedies Cumulative Except as otherwise expressly provided by the Contract, all remedies available to either the Authority or the Contractor for breach of this Contract are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. 23. Waiver The failure of either Party to exercise any right or remedy shall not constitute a waiver of that right or remedy No waiver shall be effective unless it is communicated to the other party in writing A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Contract. Contract Expiry or Termination Section 24. Break The Authority shall have the right to terminate the Contract, or to terminate the provision of any part of the Contract at any time by giving a minimum of 30 days written notice to the Contractor. The Authority may extend the period of notice at any time before it expires Without prejudice to Clause 24.1, where the Authority terminates the Contract under this Condition, the Authority shall indemnify the Contractor against any commitments, liabilities or expenditure which would otherwise represent an unavoidable loss by the Contractor by reason of the termination of the Contract, provided that the Contractor takes all reasonable steps to mitigate such loss. Where the Contractor holds insurance, the Contractor shall reduce its unavoidable costs by any insurance sums available. The Contractor shall submit a fully itemised and cost list, with supporting evidence, of such losses reasonably and actually incurred by the Contractor as a result of termination under this Condition The Authority shall not be liable under this Condition to pay any sum which: a) was claimable under insurance held by the Contractor, and the Contractor has failed to make a claim on its insurance, or has failed to make a claim in accordance with the procedural requirements of the insurance policy; or b) when added to any sums paid or due to the Contractor under the Contract, exceeds the total sum that would have been payable to the Contractor if the Contract had not been terminated prior to the expiry of the initial Contract Period. Page 19 of 44

20 25. Termination on Change of Control or Bankruptcy The Contractor shall notify the Authority immediately when any change of control occurs and the Authority reserves a right to terminate the Contract in the event of such an occurrence The Contractor shall notify the Authority in writing immediately upon the occurrence of any of the following events and the Authority reserves a right to terminate the Contract upon such an occurrence: a) where the Contractor undergoes a change of control, within the meaning of section 416 of the Income and Corporation Taxes Act 1988; or b) where the Contractor is an individual or a firm and a petition is presented for the Contractor's bankruptcy or a criminal bankruptcy order is made against the Contractor or any partner in the firm, or the Contractor or any partner in the firm makes any composition or arrangement with or for the benefit of creditors, or makes any conveyance or assignment for the benefit of creditors, or if an administrator is appointed to manage the Contractor's or firm s affairs; or c) where the Contractor is a company, if the company passes a resolution for winding up or dissolution (otherwise than for the purposes of and followed by an amalgamation or reconstruction) or the Court makes an administration order or a winding-up order, or the company makes a composition or arrangement with its creditors, or an administrative receiver, receiver, manager or supervisor is appointed by a creditor or by the court, or possession is taken of any of its property under the terms of a fixed or floating charge; or d) where the Contractor is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or any similar event occurs under the law of any other jurisdiction within the United Kingdom The Authority may only exercise its right under Clauses 25.1 and 25.2 (a) within 6 Months after a change of control occurs and shall not be permitted to do so where it has agreed in advance to the particular change of control that occurs. 26. Recovery Upon Termination & Transition of Services Termination or expiry of the Contract shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of the Contract which is expressly or by implication intended to come into or continue in force on or after such termination or expiry and in particular (but without limitation) the following clauses shall continue in full force and effect: 4, 7.7, 9, 10.10, 13.3 to 13.5, 16, 17, 18, 19, 24.2, 24.3, 27, 28, 29, 30, 35, 36, 36.2 and At the end of the Contract Period (and howsoever arising) the Contractor shall, upon request, transfer all paper and electronic files, records, documents, drawings, information and other materials relating to the Page 20 of 44